James F. Diamond

The applicant sought $23,618.00 from the respondent as a remaining equalization payment, arguing that a prior consent order required the respondent to pay 100% of a loan from her parents.

The court found the consent order clearly stated the respondent was only responsible for 'his share' (50%) of the loan.

Finding no evidence of common mistake, misrepresentation, or fraud to set aside the consent order, the court dismissed the applicant's claim.

This endorsement addresses the costs of a successful appeal and an original motion.

The plaintiff sought costs on a partial indemnity basis for the appeal and a substantial indemnity basis for the motion.

The defendants argued for costs to be reserved to the trial judge or payable in the cause, citing impecuniosity.

The court awarded the plaintiff costs for both the appeal ($12,500 on a partial indemnity basis) and the original motion ($17,500 on a partial indemnity basis), but ordered them payable after the trial has concluded, in any event of the cause.

The court declined to award substantial indemnity costs for the motion, finding the defendants' allegedly irrelevant evidence did not warrant a higher scale.

The plaintiff law firm sued its former client for unpaid legal fees.

Shortly after being served, the client granted a mortgage on her property to her former brother-in-law.

The plaintiff sought leave to issue a certificate of pending litigation (CPL) alleging a fraudulent conveyance.

The Master denied the CPL, finding insufficient evidence of fraudulent intent.

On appeal, the Superior Court found the Master erred in law by applying a higher standard of proof to the second part of the test for a CPL and usurping the function of a trial judge.

The appeal was allowed and the CPL was granted.

The individual defendants, officers and directors of BMW Canada Inc., brought a motion to strike the Amended Statement of Claim against them, arguing it failed to disclose a reasonable cause of action.

The plaintiffs alleged various torts including negligence, breach of fiduciary duty, and intentional interference with economic relations.

The court granted the motion, finding that the pleading failed to establish a basis for personal liability against the individual defendants, as their alleged actions were within their corporate capacity, and the elements for the pleaded torts were not properly established.

Leave to amend was granted, and costs were awarded to the individual defendants.

The defendants brought motions to set aside default judgments totaling over $315,000, which were granted after their Statements of Defence were struck for non-compliance with court orders and rules.

The court applied the five-factor test from *Mountain View Farms Ltd. v. McQueen* to determine if the interests of justice favored setting aside the judgments.

The court found that the defendants moved promptly, had an arguable defence, and would suffer significant prejudice if the judgments stood.

While the explanation for default was neutral, the court emphasized that striking a defence is a severe remedy and that the plaintiff could have made more effort to ensure the self-represented defendants were aware of their jeopardy.

The motions to set aside the default judgments and associated writs of seizure and sale were granted, with costs reserved.

The plaintiffs, three Russian cyclists, sued the World Anti-Doping Agency (WADA) and Richard McLaren for damages related to their exclusion from the 2016 Olympic Games.

The defendants brought Rule 21 motions to dismiss or permanently stay the proceeding for lack of jurisdiction and abuse of process, and to strike the statement of claim against McLaren.

The court found that resolving the jurisdictional issues would require extensive fact-finding, including assessing conflicting expert opinions and credibility, which exceeds the scope of a Rule 21 motion.

Consequently, the Rule 21.01(3) motions were ordered to be reconstituted as Rule 20 summary judgment motions or a trial of issues, and McLaren's Rule 21.01(1)(b) motion was deferred.

Northbridge General Insurance Corporation appealed an arbitrator's decision that designated it as the priority insurer for accident benefits following a motor vehicle accident.

Northbridge contended that Co-Operators General Insurance Company failed to provide proper notice under section 3(1) of Ontario Regulation 283/95, thereby precluding Co-Operators from asserting Northbridge's priority.

The Superior Court of Justice applied a reasonableness standard of review to the arbitrator's decision, consistent with The Dominion of Canada General Insurance Company v. Unifund Assurance Company.

The court upheld the arbitrator's finding that Co-Operators' initial failure to notify Northbridge directly under section 3(1) was not fatal, as Intact Insurance Company subsequently provided notice to Northbridge under section 10(1) of the Regulation.

The court emphasized the practical realities of priority investigations and the public policy of ensuring timely benefit payments.

The appeal was dismissed, and Northbridge was ordered to pay costs to both respondents.

The defendants brought a motion to set aside a default judgment related to a commercial lease dispute.

The court applied the five-factor test from Mountain View Farms Ltd. v. McQueen and found that while the defendants moved relatively promptly, they failed to provide a plausible explanation for their default and lacked an arguable defence on the merits due to a prior agreement waiving their claims.

The defendants' motion was dismissed.

The plaintiff's motion to amend the default judgment to reflect a prior payment was granted, reducing the principal amount to $85,850.00.

The plaintiff sought to introduce preliminary inquiry transcripts as evidence in support of a pending Mareva injunction motion.

The defendants opposed, arguing that a publication ban from the criminal proceedings prohibited their use and that the transcripts were inadmissible hearsay.

The court ruled that filing the transcripts would breach the publication ban, they were not "otherwise admissible by law" under the Ontario Evidence Act, and their evidentiary purpose in the preliminary inquiry differed from the Mareva injunction motion, leading to actual prejudice for the defendants.

Consequently, the plaintiff was not permitted to rely on the transcripts.

The plaintiff brought a motion to strike the defendant Metrolinx's jury notice in a personal injury action arising from a motor vehicle accident.

The plaintiff argued that because Metrolinx is a Crown agency, section 11 of the Proceedings Against the Crown Act mandated a trial without a jury.

The court dismissed the motion, finding that section 11 applies only to proceedings against the Crown itself, not to proceedings against Crown agents or corporations.

The accused R.G., S.G., and V.G. were charged with multiple counts of sexual assault, assault, and uttering threats to cause death arising from incidents during R.G.'s three-month arranged marriage.

The court conducted a judge-alone trial, admitting similar fact evidence.

R.G. was found guilty of four sexual assault counts and one assault count, but acquitted on other sexual assault, assault, and threat charges.

S.G. was found guilty of one assault and one threat.

V.G. was found guilty of one threat.

The court assessed the credibility and reliability of the complainant and the accused, emphasizing the Crown's burden of proof beyond a reasonable doubt.

The applicant, Steven Ruiz, brought a pre-trial application seeking to exclude evidence seized from his residence, alleging breaches of his section 7 and 8 Charter rights.

The court found that the Information to Obtain (ITO) for the search warrant was misleading, the police's dynamic entry into the property was unreasonable, and the manner of the search caused unnecessary damage and disarray.

Considering the cumulative effect of these serious Charter breaches, particularly the unlawful search based on an invalid warrant and the significant impact on the applicant's privacy interests, the court allowed the application and excluded all evidence obtained from the search pursuant to section 24(2) of the Charter.

The defendant Sherwin H. Shapiro brought a motion to strike new causes of action (knowing assistance in breach of fiduciary duty and knowing assistance in breach of trust) added by the plaintiff, Ontario Professional Fire Fighter’s Association (OPFFA), in a Fresh As Amended Statement of Claim.

Shapiro argued that these new claims were statute-barred by the Limitations Act and that the filing of the Fresh Claim constituted an abuse of process.

The court dismissed the abuse of process argument, finding the plaintiff's actions technically consistent with Rule 26.02(a) of the Rules of Civil Procedure.

The court also dismissed the motion to strike based on limitation periods under Rule 21.01, reiterating that such issues, particularly those involving discoverability, are typically inappropriate for determination at the pleadings stage under Rule 21 and are better suited for summary judgment or trial after pleadings have closed.

The court found that the material facts necessary to support the new causes of action were implicitly present in the original claim, and it was not plain and obvious that the claims were statute-barred.

The plaintiff sought summary judgment for wrongful dismissal damages after being terminated without cause.

The court found the employment agreement's termination clause to be unclear and incomplete, thus entitling the plaintiff to common law reasonable notice.

The court awarded 22 months' notice, determining the plaintiff held a senior executive role.

It also ruled that the Ontario Employment Standards Act applied to the calculation of lost benefits, despite the plaintiff working in California, due to an Ontario choice-of-law clause in the agreement, rejecting the defendant's public policy argument.

The valuation of lost benefits was deferred for further resolution, and mitigation income was partially offset by $30,000 USD.

The court, on referral from the registrar's office following a request by the Attorney General of Canada, reviewed the plaintiff's Notice of Action and Statement of Claim under Rule 2.1.01.

The court found the pleadings to be frivolous, vexatious, and an abuse of process due to a severe lack of particulars and a failure to connect the allegations to the plaintiff.

Consequently, the court directed the registrar to issue a Form 2.1A notice to the plaintiff, indicating that the court is considering dismissing the action.

The action was stayed pending a written hearing, and further filings were restricted.

A case conference was held to address procedural issues following previous endorsements.

The court directed the parties to draft separate orders for six prior motions.

The court also scheduled a Rule 21 motion brought by the defendant Shapiro regarding the plaintiff's Fresh as Amended Statement of Claim, and scheduled the plaintiff's renewed motion for a Mareva injunction.

Finally, the court set a timetable for written submissions regarding the Atkinson defendants' request to pay outstanding costs orders from funds held in trust.

The plaintiff filed a Notice of Action seeking specific performance for an alleged breach of contract against the Government of Ontario.

The Attorney General of Canada, a defendant, requested a review under Rule 2.1.01(6) to dismiss the action as frivolous, vexatious, and an abuse of process.

The court found the Notice of Action difficult to understand and potentially frivolous but deferred a decision on dismissal, requiring a review of the plaintiff's Statement of Claim, if filed, before proceeding with a Form 2.1A notice.

The Atkinson defendants brought a motion seeking approval to withdraw funds held in trust to pay legal fees and costs awards.

The plaintiff opposed, arguing that the funds were subject to a solicitor's undertaking given by the Atkinson defendants' counsel to hold them in trust pending the resolution of the dispute.

The court found that a clear and unambiguous undertaking existed, binding the funds to remain in trust until entitlement was determined by the court or by agreement between the parties.

Consequently, the Atkinson defendants' request to access the funds was denied.

Following a successful appeal by the plaintiff that varied the original summary judgment, the Court of Appeal referred the issue of costs for the original motion back to the motion judge.

The plaintiff sought $54,000 in costs, relying on an offer to settle that entitled him to substantial indemnity costs from the date of the offer.

The court reviewed the costs outline, found some entries excessive, and awarded the plaintiff all-inclusive costs of $42,000.

The plaintiff brought a motion seeking answers to questions refused or taken under advisement during the cross-examination of an affiant.

The affidavit was sworn in the context of a pending motion to determine whether certain funds were held in trust pursuant to an agreement.

The Case Management Judge found that while the questions might meet the semblance of relevance test, they fell outside the narrow scope of the upcoming trust funds motion.

To ensure proportionality and efficiency, the court declined to order the questions answered at this time, without prejudice to the plaintiff's right to renew the request after the disposition of the trust funds motion.